Calcutta High Court
M/S. Star Paper Mills Ltd vs Eastern Coalfields Limited on 11 April, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 3 of 2023
In CS 133 of 2015
M/s. Star Paper Mills Ltd.
Versus
Eastern Coalfields Limited
Ms. Sristi Burman
Mr. Siddhartha Shah
Mr. Rishav Dutt
Ms. S. Basu
... for the petitioner/plaintiff.
Mr. Pradipta Bose
Mr. Saunak Sengupta
Mr. Nilankar Barman
... for the respondent/defendant.
Heard on : 27.03.2023
Judgment on : 11.04.2023
Krishna Rao, J.:
The plaintiff has filed the instant application seeking leave to produce
additional documents.
Ms. Sristi Burman, Learned Advocate representing the plaintiff
submits that the plaintiff has instituted the suit on 16th May, 2015, prior to
commencement of the Commercial Courts Act, 2015. She submits that after
the enactment of the Commercial Courts Act, 2015, by the consent of both
the parties, this Court has transferred the instant suit before this Court as
the transaction between the plaintiff and defendant is commercial in nature.
Ms. Burman submits that due to pandemic Covid-19, this Court was
taking only the urgent matters and as such the plaintiff could not take steps
during the said period and soon after regular Court starting functioning, the
plaintiff has contacted his advocate-on-record and the during discussion,
the advocate-on-record came to know that some further documents which
has not been disclosed along with the plaint earlier is required to be
disclosed for proper and effective adjudication of the instant suit.
Ms. Burman submits that the concerned dealing official of the plaintiff
who was acquainted with the facts of the matter and all relevant documents
connected with the instant suit has left the employment of the plaintiff due
to which delay was caused for filing of the instant application. She further
submits that as the document is voluminous and as such the advocate-on-
record took time to prepare the instant application after verification of the
documents.
Ms. Burman submits that the documents which the plaintiff intends
to disclose are very much necessary for proper adjudication of the instant
suit.
Mr. Pradipta Bose, Learned Advocate representing the defendant
submits that the application filed by the plaintiff is not maintainable under
law. He submits that the plaintiff has filed the instant application in gross
suppression and misrepresentation of material fact.
Mr. Bose submits that the documents which the plaintiff intends to
produce, all the documents are of prior to filing of the suit and the plaintiff
has not disclosed as to why the plaintiff has not made the said documents
being the part of the plaint.
Mr. Bose submits that the provisions of Commercial Courts Act, 2015
would apply in the present suit and as such the plaintiff cannot be allowed
to disclose further document at the later stage.
Mr. Bose relied the provision of Order 11 Rule 3 and Rule 5 and
submits that the plaintiff has filed a false declaration at the time of the filing
of the suit that the plaintiff has disclosed all the documents which were in
possession, control or custody of the plaintiff.
Mr. Bose submit that as per the Provision of Order 11 Rule 5 of the
amended provisions of the Code of Civil Procedure, 1908, the plaintiff shall
not be allowed to rely on the documents which were in the plaintiff's
possession and had not disclosed along with the plaint or within the
extended period as provided under law.
Mr. Bose submits that admittedly the documents which the plaintiff
intends to bring on record at the later stage were in possession of the
plaintiff and the plaintiff has not disclosed the same at the time of filing of
the suit and on the other hand, the plaintiff has declared that the plaintiff
has disclosed all the documents.
Mr. Bose relied upon the following judgments :
i. 2021 SCC OnLine SC 734 (Sudhir Kumar @ S. Baliyan -vs- Vinay
Kumar G.B.).
ii. 2022 SCC OnLine Del 3089 (Anita Chhabra & Ors. -vs- Surender
Kumar).
iii. Unreported judgment passed by the Delhi High Court in the case
of Bela Creation Private Limtied -vs- Anuj Textiles dated 2nd
May, 2022.
iv. Unreported judgment passed by the Del High Court in the case of
Societe Des Products Nestle S.A. & Anr. -vs- Esser Industries &
Ors. dated 28th July, 2016.
The documents which the plaintiff intents to disclose in the suit are as
follows :
Sr Document Particulars
1 Steam Consumption statement This illustrates the excess
from internal audit report of expenditure in
Chaturvedi & Co in March, consumption of coal in
2011 (Annexure B) 2011-12 as compared to
2008-09 and 2009-10
amounting to Rs.
1,61,22,448/-.
2 Table showing Eastern In the year 2011, GCV-
Coalfield Limited's (ECL) rake Gross Calorific Value
details supplied to the plaintiff (quality) of coal was much
in different years (Annexure C) lower than the quality
agreed upon.
3 Table showing cost of coal from This comparative chart
Eastern Coalfields Limited shows the extra
compared to the actual market expenditure incurred by
price of coal. (Annexure D) the plaintiff amounting to
Rs. 3,25,09,848/-
4 Comparative chart of coal This comparative chart
supplied by ECL under Bill nos. shows a huge difference
2702041100101 and in the quality of coal
2702041100107 and the norms supplied under the bills
suggested by ECL. (Annexure as mentioned as
E). compared to the
suggested Norms by the
defendant itself.
5 Certificate of Inspection no. Analysis of coal supplied
C/IGI/DLH/12- by ECL - as per ISO
13/C&C/34554/145235 from Standards on air dried
Inspectorate Griffith Pvt Ltd dt. basis - it was found GCV
11.05.2012. (Annexure F) Kca;/kg was 5630 and
total moisture % was
4.41.
6 Comparative chart This chart shows there
demonstrating the percentage was a gradual increase in
of coal brought from ECL by the the quantity of coal
plaintiff versus the percentage bought from the market
of coal bought from the market by the plaintiff due to
from 2007-15. (Annexure G) inferior quality as against
billed by ECL.
7. Tabular chart showing losses This shows the actual
due to increase in machine and time when the machinery
turbine downtime due to poor was out of action or
quality coal from March 2011 to unavailable for use due to
June 2012. (Annexure H) the inferior quality of coal
being used as supplied by
ECL.
8 Complete audit report prepared This report indicates the
by Chaturvedi & Co (FY2011- reports, observations,
12) (Annexure I) management replies
impact and
recommendations on
boiler efficiency,
maintenance work orders,
steam consumption per
ton, furnace oil
consumption.
9 Year wise details of coal This shows that the
procurement and consumption yearly coal consumption
from the market. (Annexure K) from the market increased
due to the poor quality
coal being supplied by
ECL.
10 Purchase Order 360027-12 dt. Purchase order for Slack
04.05.2012 (Annexure K) coal issued by plaintiff to
the defendant - 3415.700
MT
11 Purchase Order 360169-09 dt. Purchase order for Slack
06.10.2009, (Annexure L) coal issued by plaintiff to
the defendant - 29250
MT
12 Purchase Order 360056-11 dt. Purchase order for Slack
06.06.2011. (Annexure M) coal issued by plaintiff to
the defendant - 564.480
MT.
13 Bill/Invoice no. This shows that price
11030412001113 dt. charged by ECL was for
07.04.2012 issued for Rs. Coal with GCV 6200 -
2,04,23,812.58/- . (Annexure whereas coal supplied
N) was of much lower GCV.
14 Order no. 360165-14 issued by Order placed by plaintiff
plaintiff to Osho Minerals India upon Osho Minerals India
Private Limited. (Annexure O) Private Limited for
procurement of 2000 MT
imported South African
Coal - as coal supplied by
ECL was of inferior
quality.
15 Order no. 360067-15 issued by Order for supply of 3800
plaintiff to SBC Minerals MT steam coal - as coal
Limited. (Annexure P). supplied by ECL was of
inferior quality.
16 Test Report dated 21.03.2009 It was found that coal of
and 20.04.2012 and GCV 4465, 5776 and
19.04.2011 on coal rake sent 4549 was supplied
by ECL. (Annexure Q) (lowest grade)
17 Grades of Coal published by This publication indicates
Ministry of Coal. (Annexure R) the grades/specifications
of coal.
18 New pricing list of non-coking This table is indicative of
coal based on GCV dated the price of non-coking
31.01.2012. (Annexure S) coal for power utilities,
fertilizer, defence sector
and for sectors other than
power utilities (including
IPPs).
19 A comparative chart of coal This demonstrates the
supplied by ECL under Bill no. cost of Grade B Coal and
1103041200113 dt. quantity of coal supplied
13.04.2012 and the norms by ECL compared to the
suggested by ECL. (Annexure norms suggested by ECL.
T). The GCV of rake supplied
is lower than ECL norms.
20 Price Notification no. CIL S & M This shows the prices and
GM (F) pricing dated rates of coal from various
27.05.2013. (Annexure U). subsidiaries.
21 Bill cum Tax Invoice No. For a sum of Rs.
2702041100107 dt. 1,17,60,381/-
30.03.2011. (Annexure V).
22 Bill cum Tax Invoice No. For a sum of Rs.
2702041100101 dt. 87,00,628.67/-
30.03.2011. (Annexure W)
23 Month wise chart of boiler For the period of April
efficiency during financial year 2011-March 2012.
2010-11. (Annexure X).
24 Notice dt. 27.02.2012, These notices are
25.01.2012, 16.12.2011, indicative of less
26.07.2011, 21.01.2014, availability of coal with
regarding coal allocation ECL as they have allotted
(Annexure Y) only 60% to 70% Coal
quantity for supply.
25 News article citing various
unfair trade practices by Coal
India Limited and violation of
competition norms. (Annexure Z)
On perusal of the above documents it reveals that all the documents
are of the year 2011 to 2015 i.e prior to filing of the suit. The ground urged
by the plaintiff for non-disclosure of the documents is that at the time of
filing of the suit usual practice was not to disclose all relevant documents
along with the plaint but to disclose at later stage at the time of filing
affidavit of evidence. It is admitted by the plaintiff that the said procedure
has changed after promulgation of the Commercial Courts Act, 2015. On
20th April, 2022, the suit was transferred to this Court.
It is true that Order XI, Rule 1 of the CPC is applicable to the
commercial suits brought about a radical change and it mandates the
plaintiff to file the list of all documents, photocopies of all documents, in its
power, possession, control or custody pertaining to the suit, along with the
plaint and a procedure provided under Order XI, Rule 1 is required to be
followed by the plaintiff and the defendant, specially when the suit is
commercial suit. Order XI Rule 1 as applicable to the commercial suits read
as follows:
"DISCLOSURE, DISCOVERY AND INSPECTION
OF DOCUMENTS IN SUITS BEFORE THE
COMMERCIAL DIVISION OF A HIGH COURT
OR A COMMERCIAL COURT
O.11 R.1. Disclosure and discovery of
documents.--(1) Plaintiff shall file a list of all
documents and photocopies of all documents, in its
power, possession, control or custody, pertaining to the
suit, along with the plaint, including:--
(a) documents referred to and relied on by the
plaintiff in the plaint;
(b) documents relating to any matter in question
in the proceedings, in the power, possession,
control or custody of the plaintiff, as on the date
of filing the plaint, irrespective of whether the
same is in support of or adverse to the plaintiff's
case;
(c) nothing in this Rule shall apply to documents
produced by plaintiffs and relevant only--
(i) for the cross-examination of the defendant's
witnesses, or
(ii) in answer to any case set up by the defendant
subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his
memory.
(2) The list of documents filed with the plaint shall
specify whether the documents in the power,
possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list shall
also set out in brief, details of parties to each document,
mode of execution, issuance or receipt and line of
custody of each document.
(3) The plaint shall contain a declaration on oath
from the plaintiff that all documents in the power,
possession, control or custody of the plaintiff, pertaining
to the facts and circumstances of the proceedings
initiated by him have been disclosed and copies thereof
annexed with the plaint, and that the plaintiff does not
have any other documents in its power, possession,
control or custody.
Explanation.--A declaration on oath under this
sub-rule shall be contained in the Statement of Truth as
set out in the Appendix.
(4) In case of urgent filings, the plaintiff may seek
leave to rely on additional documents, as part of the
above declaration on oath and subject to grant of such
leave by Court, the plaintiff shall file such additional
documents in Court, within thirty days of filing the suit,
along with a declaration on oath that the plaintiff has
produced all documents in its power, possession, control
or custody, pertaining to the facts and circumstances of
the proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff's power,
possession, control or custody and not disclosed along
with plaint or within the extended period set out above,
save and except by leave of Court and such leave shall
be granted only upon the plaintiff establishing
reasonable cause for non-disclosure along with the
plaint.
(6) The plaint shall set out details of documents,
which the plaintiff believes to be in the power,
possession, control or custody of the defendant and
which the plaintiff wishes to rely upon and seek leave
for production thereof by the said defendant.
(7) The defendant shall file a list of all documents
and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit,
along with the written statement or with its
counterclaim if any, including--
(a) the documents referred to and relied on by the
defendant in the written statement;
(b) the documents relating to any matter in
question in the proceeding in the power,
possession, control or custody of the defendant,
irrespective of whether the same is in support of
or adverse to the defendant's defence;
(c) nothing in this Rule shall apply to documents
produced by the defendants and relevant only--
(i) for the cross-examination of the plaintiff's
witnesses,
(ii) in answer to any case set up by the plaintiff
subsequent to the filing of the plaint, or (iii)
handed over to a witness merely to refresh his
memory.
(8) The list of documents filed with the written
statement or counterclaim shall specify whether the
documents, in the power, possession, control or custody
of the defendant, are originals, office copies or
photocopies and the list shall also set out in brief,
details of parties to each document being produced by
the defendant, mode of execution, issuance or receipt
and line of custody of each document.
(9) The written statement or counterclaim shall
contain a declaration on oath made by the deponent
that all documents in the power, possession, control or
custody of the defendant, save and except for those set
out in sub-rule (7) (c) (iii) pertaining to the facts and
circumstances of the proceedings initiated by the
plaintiff or in the counterclaim, have been disclosed and
copies thereof annexed with the written statement or
counterclaim and that the defendant does not have in
its power, possession, control or custody, any other
documents.
(10) Save and except for sub-rule (7) (c) (iii),
defendant shall not be allowed to rely on documents,
which were in the defendant's power, possession,
control or custody and not disclosed along with the
written statement or counterclaim, save and except by
leave of Court and such leave shall be granted only
upon the defendant establishing reasonable cause for
non-disclosure along with the written statement or
counterclaim.
(11) The written statement or counterclaim shall
set out details of documents in the power, possession,
control or custody of the plaintiff, which the defendant
wishes to rely upon and which have not been disclosed
with the plaint, and call upon the plaintiff to produce the
same.
(12) Duty to disclose documents, which have come
to the notice of a party, shall continue till disposal of the
suit."
Order XI Rule 1(3) provides that the plaint shall contain a declaration
on oath from the plaintiff that all documents in the power, possession,
control or custody of the plaintiff, pertaining to the facts and circumstances
of the proceedings initiated by him have been disclosed and copies thereof
annexed with the plaint, and the plaint does not have other document in its
power, possession, control or custody. As per the explanation under Order
XI Rule 1(3), a declaration on oath under this Sub-Rule shall be contained
in the Statement of truth reads as under :
"STATEMENT OF TRUTH
"I_____________,s/o__________age____years______
______,___________________________________do hereby
solemnly affirm and declare as under;
I am plaintiff in this suit and I am competent and
authorized by plaintiff company to swear this affidavit.
I am sufficiently conversant with the facts of the
case and I have also examined all relevant documents
and records in relation thereto.
I say that the statements made in paragraph no.
1 to 13 are true to my knowledge and statements made
in paragraph 14 to 16 are based on legal advice, which
I believe to be true and correct.
I say that there is no false statement or
concealment of any material fact, document or record
and I have included information that according to me, is
relevant for present suit.
I say that all documents in my power, possession,
control or custody pertaining to the facts and
circumstances of the proceedings initiated by me have
been disclosed and copies thereof are annexed with the
plaint, and I do not have any other documents in my
power, possession, control or custody.
I say that the above mentioned pleadings
comprises of total of 8 pages, each of which has been
duly signed by me.
I state that the Annexures hereto are true copies
of the documents referred to and relied upon by me.
I say that I am aware that for any false statement
or concealment, I shall be liable for action taken against
me under the law for the time being in force.
Place: __________
Date: ___________
Deponent."
As per the above provision, the declaration on oath shall be part of the
plaint. The plaintiff has to declare on oath that all documents in its/his
power, possession, control or custody pertaining to the facts and
circumstances of the proceedings initiated by him or it has been disclosed
and the copies thereof annexed with the plaint, and that he does not have
any other documents in his power, possession, control or custody. Therefore
as such it is mandatory by Order XI, Rule 1 for the plaintiff to disclose and
produce all documents in his power, possession, control or custody,
pertaining to the facts and circumstances of the proceedings.
This Court finds that the plaintiff has not filed statement truth along
with the plaint. After the transfer of the suit before this Court, the plaintiff
has only amended the cause title of the plaint by incorporating the word
"Commercial Division" and has not taken any further steps in compliance of
the Commercial Courts Act, 2015.
However, additional document can be permitted to be brought on
record with the leave of the Court as provided in Order XI Rule 1(4). Order
XI, Rule 1(4) provides that in case of urgent filings, the plaintiff may seek
leave to rely on additional documents as part of the declaration on oath (as
provided under Order XI Rule 1(3) and subject to grant of such leave by
Court, the plaintiff shall file such additional documents in Court, within
thirty days of filing of the suit, along with a declaration on oath that the
plaintiff has produced all documents in its power, possession, control or
custody, pertaining to the facts and circumstances of the proceedings
initiated by the plaintiff and that the plaintiff does not have any documents,
in its power, possession, control or custody.
Order XI, Rule 1(5) further provides that the plaintiff shall not be
allowed to rely on documents, which were in the plaintiff's power,
possession, control or custody and not disclosed along with plaint or within
the extended period set out above, save and except by leave of Court and
such leave shall be granted only upon the plaintiff establishing reasonable
cause for non-disclosure along with the plaint. Therefore, on combined
reading of Order XI Rule 1(4) read with Order XI Rule 1(5), it emerges that (i)
in case of urgent filing, the plaintiff may seek leave to rely on additional
documents, (ii) within 30 days of filing of the suit, (iii) making out a
reasonable cause for non-disclosure along with plaint.
Therefore, further 30 days time is provided to the plaintiff to place on
record or file such additional documents in Court and a declaration on oath
is required to be filed by the plaintiff as required as per Order XI Rule 1(3), if
or any reasonable cause for non-disclosure along with the plaint, the
documents, which were in the plaintiff's power, possession, control or
custody is not disclosed along with the plaint. Therefore, the plaintiff has to
satisfy and establishes cause for non-disclosure along with plaint. However,
at the same time, the requirement of establishing the reasonable cause for
nondisclosure of the documents along with the plaint shall not be applicable
if it's award and it is the case of the plaintiff that those documents have
been found subsequently and in fact were not in the plaintiffs power,
possession, control or custody at the time when the plaint was filed.
Therefore, Order XI Rule (4) and Order XI Rule 1(5) applicable to the
commercial suit shall be applicable only with respect of the documents
which were in the plaintiff's power, possession, control or custody is not
disclosed along with the plaint. Therefore, the rigour of establishing the
reasonable cause is non-disclosure along with the plaint may not arise in
the case where the documents sought to be produced/ relied upon are
discovered subsequent to file of the plaint.
The present suit was transferred to this Court on 20th April, 2022 but
the plaintiff has not taken any steps for leave to disclose documents as per
the provisions of Commercial Courts Act within thirty days. It is also found
from record that the plaintiff has not filed statement of truth along with the
plaint after transfer of the suit.
The plaintiff has now filed the instant application in the month of
January, 2023 seeking leave to produce additional documents. Admittedly,
the documents were in possession of the plaintiff and had not disclosed the
same along with the plaint being voluminous. Assuming when the plaintiff
had filed the suit at the relevant point of time, there was no mandatory
provision for filing of the documents along with plaint but subsequently the
suit was transferred before this Court and by that time the amended
provision were in force and the plaintiff has amended the plaint by
incorporating the word Commercial Division but had not taken any further
steps in compliance of the Commercial Courts Act, 2015 including by filing
the statement of truth.
The suit was transferred to the commercial division by an order dated
20th April, 2022 and the plaintiff had carried out amendment by
incorporating the word Commercial Division on 24th April, 2022 and has not
taken any further steps in compliance of the Commercial Courts Act, 2015
and had filed the instant application in the month of January, 2023 i.e.
about 9 months after from the date of transfer of the suit to this Court.
In view of the above, I am of the opinion that the plaintiff has not
shown any reasonable cause for non-disclosure of the documents along with
plaint and the plaintiff has also not availed the benefit when the suit was
transferred to this Court. Accordingly, the application filed by the plaintiff
being G.A. 3 of 2023 for disclosure of additional documents is thus
dismissed.
(Krishna Rao, J.)
